Reports of Patent Design and Trade Mark Cases
Trade Mark.-Action for infringement and for passing off.-Motion to 5 expunge Trade Mark.-Mark "pol'trait in an oval."-Distinctive 1nark.-Similaritu of labels.-Probabil1:ty of deception-s-Alleqed acquiescence.--Delay. -Olnission of non-essential ioords i-n use of Trade Mark.-Injunction granted against passinq off.-Motion to erpunqe dismissed. R., the Plaintiff, ioas the registered otoner of a Trade Mark consistinq of his 10 portrait in, an oval and the words " The new conqueror, never knoum to
... r, never knoum to fail." The essential part of the mark was stated to be the portrait, and the Plaintiff disclaimed any exclusive right to the words. The Plaintiff sold "Arn~y and " Navy Paregoric Tablets ," in tins and packets, toith. pinle and tohite wrappers respectiuelu, tohich. uirappers bore the Plaintiff had varied his general description and" get 1.tp " from time to time; that the Plaintiff, having lain by for a considerable time, was not entitled to relief; and that the Plaintiff was not usinq his Trade Mark as registered. The 30 Plaintiff, in effect, omitted certain of the disclaimed uiords. The Defendant gave notice of motion to rectify the Register by striking off the Plaln,tiff's Trade Mark.